–Maja Sahadžić, PhD Researcher, Government and Law Research Group, Faculty of Law, University of Antwerp

Although the Constitutional Court, ideally and ad normam, is perceived as a body which prevents discrimination, in the constitutional reality of Bosnia and Herzegovina it nevertheless reflects certain discriminatory features. A subtle ethnic opportunism has yielded a group labeled as “the Others”, with implications for their treatment at different levels of legislative and executive branches in Bosnia and Herzegovina, and also at the Constitutional Court.

The qualification “Others” in Bosnia and Herzegovina was introduced in the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (colloquially known as the Dayton Peace Agreement). Based on ethnic strongholds, Bosniaks, Croats, and Serbs were established as the constituent peoples. Due to the inability of the constitution-maker to properly label the citizens living in Bosnia and Herzegovina who do not declare themselves as the constituent peoples, fourth bests were designated as the Others.

For the fact that the affiliation of the Others was left undefined, researchers have addressed them as national minorities and the nationally undeclared. In the simplest form, they have been referred to as the non-constituent peoples. Nevertheless, their denomination is not their only misfortune in Bosnia and Herzegovina. Routinely, they have been denied the opportunity to participate in the executive and the legislature at different levels of government in Bosnia and Herzegovina. Moreover, a consistency in neglecting their participation continues years after the European Court of Human Rights had established that the Constitution of Bosnia and Herzegovina contains discriminatory provisions with regards to the Others in the case Sejdić and Finci vs. Bosnia and Herzegovina.

Paradoxically and indeed contrary to constitutional standards, it is evident that even the institution of the Constitutional Court of Bosnia and Herzegovina itself appears to have a hard time resisting ethnic anathema of Bosnia and Herzegovina. According to constitutional provisions, the election of national judges is based on the principle of entity representation. Also, there are no provisions mentioning the ethnic representation of the constituent peoples. Nevertheless, it seems that the Constitutional Court patented and applied the ethnic key when electing judges as well. In other words, in the current practice, the judges are elected against the criteria of the entity, in a favor of ethnic balance. This means that, in practice, the members of Others are precluded from becoming a constitutional court judge despite potential qualifications.

It is evident that the current practice feigns the constitutional provisions on the election of judges since the composition of the six national judges is made of two judges from each of the constituent peoples. Although the constitutional postulate does not assume that judges of the Constitutional Court of Bosnia and Herzegovina that are elected in the Federation of Bosnia and Herzegovina should be Croats and Bosniaks, nor that judges that are elected in the Republic of Srpska should be Serbs, this is, however, the case in reality. Such constitutional postulate is inconsistent with the principle of judicial independence and it conflicts with the rule of law. In other words, the institution which is the highest authority responsible for the protection of the Constitution of Bosnia and Herzegovina is at the same time unfaithful to the very same Constitution. Besides, the Others are, intentionally or not, made irrelevant by highlighting the constituent predicaments without any constitutional foundation, and this behavior is supported by a self-emerged practice of election of judges of the Constitutional Court of Bosnia and Herzegovina. The constituent peoples are, for the sake of constitutional balance, placed on the pedestals of the predestined ones for all the positions, including the positions of the Constitutional Court of Bosnia and Herzegovina judges, contrary to constitutional provisions.

The (un)constitutional ineligibility of the Others is further deepened by provisions of the Rules of the Constitutional Court of Bosnia and Herzegovina, which stipulate that the president and vice presidents of the Constitutional Court may not be the representatives of the Others, and that sessions of this Court shall be postponed if not attended by at least one judge who is from among the constituent peoples – however, if the same situation repeats without justifiable reason, the next session will be held. When disregard of constitutional obligations is coupled with political speeches and rhetoric surrounding the election of judges, the constitutional perversion in Bosnia and Herzegovina becomes more than apparent. To that end, the institution responsible for protecting the constitution weakens the stability of the constitutional foundation upon which it rests by failing to act and correct a practice when such practice is unjustified and contrary to the Constitution. The Others stand no chance due to simulated constitutional normality which does not have any constitutional foundation, and which comes at their expense.

It is incomprehensible and unacceptable that the Constitutional Court of Bosnia and Herzegovina, which is positioned as an independent judicial body in relation to the legislative, executive, and judicial power, deliberately follows the same pattern of political institutions dominated by the ethnic plexus, all the more so because the Constitution also does not provide for ethnic representation in the Constitutional Court. It is clear that any attempt to eliminate discrimination against the Others would intensify the sensitive ethnic nervousness, which is already too pronounced. However, it is equally clear that the elimination of discrimination against the Others must be addressed, especially since there are no constitutional norms underlying the discriminatory treatment against them in practice. This would not mean abolishing the rights of the constituent peoples, but rather eliminating discrimination against the non-constituents.

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